For 20 years, Steamboat resident Rob Douglas was a Washington, D.C. private detective specializing in homicide, political corruption and terrorism. Since 1998, Douglas has been a commentator on local, state and national politics in Washington, D.C., Maryland and Colorado. To reach Rob Douglas, email rdouglas@SteamboatToday.com.

For 20 years, Steamboat resident Rob Douglas was a Washington, D.C. private detective specializing in homicide, political corruption and terrorism. Since 1998, Douglas has been a commentator on local, state and national politics in Washington, D.C., Maryland and Colorado. To reach Rob Douglas, email rdouglas@SteamboatToday.com.

Rob Douglas: Why no manslaughter charge?

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Rob Douglas

Rob Douglas' column appears Fridays in the Steamboat Today. He can be reached at rdouglas@SteamboatToday.com.

Find more columns by Douglas here.

— The question being asked throughout the Yampa Valley this week is: Why wasn't Eduardo Capote Jr. charged with manslaughter, instead of assault, for his role in the death of Sgt. 1st Class Richard Lopez?

And it's not just average folks like you and me asking the question. Those who know the facts best - the Steamboat Springs Police Department - are asking the same question.

It's a good question made even more relevant by the allegations contained within the affidavits for arrest warrants for Eduardo Capote and his brother David.

It's a good question that deserves a better answer than the official responsible for the charging decision, District Attorney Elizabeth Oldham, has provided so far.

The Colorado Revised Statutes define manslaughter - the charge local police wanted for Eduardo - as: "A person commits the crime of manslaughter if such person recklessly causes the death of another person."

Assault in the second degree - the most serious offense Eduardo Capote faces - is defined as: "A person commits the crime of assault in the second degree if with intent to cause bodily injury to another person, he causes serious bodily injury to that person or another."

Given those definitions, it's hard to fathom why Oldham charged Eduardo with assault, instead of manslaughter, when the evidence used as the basis for the current charges indicates he is the individual who threw the punch that caused Lopez to strike his head on the ground and die - arguably a case of recklessly causing the death of another person if ever there was one.

The affidavit for the arrest warrant for Eduardo Capote, prepared and sworn to by Detective Dave Kleiber, of the Steamboat Springs Police Department, is replete with evidence of reckless actions by both the Capote brothers.

- Dr. Doberson, the coroner who performed Lopez's autopsy, told Detective Kleiber that "Richard Lopez's injuries were consistent with being punched a single time under the chin, being knocked unconscious, falling backward in an 'unprotected fall,' then striking his head on the road surface."

- During the autopsy, Kleiber observed "additional bruising on Richard Lopez's arms and chest that may have been caused by the Capotes punching and kicking Lopez while he was unconscious on the ground.

- One witness saw a man (identified by police as Eduardo Capote) charge from the corner into the middle of the street with "flying fists" and punch Lopez one time and Lopez falling to the ground. The witness did not see Lopez do anything threatening.

- The same witness recorded cell phone video that "... shows the figure of a person punching at another person." A man's voice is yelling "Boom ... Boom" each time a punch is thrown. A woman is screaming, "David stop it. ... Stop it. ... David stop it!" Finally, a man is heard saying "Miami! Don't (expletive) with."

- A second witness saw a man (identified by police as Eduardo Capote) who took off his jacket and ran up and hit Lopez with a "running good punch," a "sucker punch" to the face. The witness said that it was "not mutual combat and did not think Lopez even saw his attacker."

- A third witness saw "two males near the male on the ground trying to prevent two other males from punching and kicking the person lying on the ground. One of the men was 'throwing drunken haymakers' as those who were trying to protect the unconscious Lopez yelled, 'Dude stop' and 'We're not like trying to fight' and 'Leave him alone.'"

With those allegations, plus the statement of District Attorney Oldham that Eduardo Capote "did intend to cause (Lopez) harm and even death," it's hard to understand why Oldham choose assault instead of manslaughter.

And it's not as if the charge of manslaughter - which is consistently defined across the country - hasn't been used in similar circumstances. I worked close to 100 murder cases as a private detective in Washington, D.C., and had several cases where fistfights resulting in fatal brain injuries were charged as manslaughter.

While we should all give District Attorney Oldham the benefit of the doubt, I suspect there are more than a few of us who would like a clearer explanation for her decision to not charge Eduardo Capote Jr. with manslaughter. Hopefully, Oldham will provide that explanation.

To reach Rob Douglas, e-mail Rob.Douglas@Comcast.net

Comments

Scott Wedel 5 years, 5 months ago

It is not terribly hard to speculate why the DA chose not to pursue the charge of manslaughter. Because the DA wants to win. And "recklessly cause" is not the same as accidentally cause and the distinction is that recklessly cause suggests that it was "reasonable to expect". And it is too easy for the defense to argue that the defendant had no idea that one punch might kill the victim. And so the DA is being safe and going with the charge that is much more likely to win. A jury that acquits on the most serious charge tends to have then accepted the defense argument and is more likely to acquit on the other charges as well. So the DA went safe with the assault charge.

This is in no way to diminish the terrible tragedy. But when in the legal system then it becomes strategy and tactics.

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seeuski 5 years, 5 months ago

The problem Scott, is that now the defense has to only defend against assault since the manslaughter charges are off the table. The jury, if they find in favor of the prosecution, would still have the same disposition of guilty or not guilty but would have more options as to the extent of the guilt as the the evidence would bare out. They would have the power to convict of the lessor charge as you say, so why not charge with murder since the evidence indicates a continued pounding after the victim was rendered unconcious? So no, I think the prosecutor is being to soft here and winning or losing is not the factor.

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MrTaiChi 5 years, 5 months ago

The concept of criminal intent, 'mens rea', would seem to be the same in either case.

Most significant are the reports that this was not a mutual combat situation, that the fatal blow was a running sucker punch, and that the assailant had the coordination and capacity to accurately deliver the punch and issue boasts and taunts, all of which negate incapacitating intoxication as a mitigating circumstance.

It sounds like the DA is doing the defense's job for them.

She should have put it before the Grand Jury for them to weigh the issue of recklessness. This is a misuse of prosecutorial discretion and an unusual example of why we need a Grand Jury system to protect society from such misjudgments as well as protecting individual citizens who are incorrectly accused.

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aichempty 5 years, 5 months ago

They'll get these guys in civil court. Making them pay out a judgment for the rest of their lives by garnishing their wages and puttling liens on their property is far worse punishment than sitting in prison.

But Rob, you're new around here. There's more to it. These guys have to be convicted in the Routt County Kangaroo Court. Has it escaped your notice that we had a guy who left the scene of an accident, was charged with vehicular homicide, and served only a few months before being turned loose in the community again?

The last murder trial we had was botched and screwed around like you wouldn't believe. The first judge had to recuse himself because of involvment in a cocaine scandal involving his girlfriend and an officer who worked on the murder case. Then there was an appeal related to the instructions given to the jury. And this was in a case where the accused was alleged to have stabbed the victim something like nineteen times while high on cocaine. How do you screw up a case like that? Well, it was done famously around here. The folks in DC handle murder cases on a daily basis and have lots of experience. Not so in Routt County.

I'd be surprised if these guys go to trial. They'll probably plead guilty to assault to avoid the jury trial, and get a break on sentencing because they were drunk when it happened. Have you noticed that this is a tourist town? Have you noticed that the "system" is soft on offenders where substance abuse is involved?

Think of it this way. If our system can get these two fellas into Canon City among a prison population of violent Hispanics, and they've killed a Hispanic soldier, how long do you think they will last?

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Kristopher Hammond 5 years, 5 months ago

Proving intent to cause bodily injury (pain) is much easier than proving "recklessly causing death". "Reckless" means to consciously disregard a known risk: "I knew it could have killed him but I did it anyway." There may be other factors which complicate the cause-of-death question. Was Lopez drinking? Had he said anything threatening earlier? etc. I can see why the prosecutor would be motivated by a desire to win the case. What would motivate the prosecutor to be "soft" or even be perceived as soft in a high-profile case like this?

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aichempty 5 years, 5 months ago

Shawant,

Chief Justice O'Hara has a stated policy of requiring the DA and defense attorneys to seek plea bargains. Trials are expensive, and the court budgets are tight. Routt County taxpayers paid for the new justice center ($18,000,000) but the State pays for the court operating costs and salaries, etc.

So, don't blame the prosecutor. He has to get along with the judge if he wants his other cases to go to court. Try getting a search warrant around here. Why do you think we've got houses full of pot plants around the county and no drug dog? You're a smart guy. Do the math.

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MrTaiChi 5 years, 5 months ago

@ Shawant

I disagree. The intent to cause bodily injury is the same.

Your definition of intent would require the attacker to have a mindset that he didn't care if his actions could cause deadly consequences, even if he foresaw them, which is an intent that would support a murder charge in most jurisdictions, like driving a car at high speed into a crowd of people.

Manslaughter traditionally involves intentional violent acts with unforeseen deadly consequences.

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Kristopher Hammond 5 years, 5 months ago

MTC: I'm not giving you my opinion. I'm telling you how Colorado law defines these terms. 2d assault=intent to cause BI. Manslaughter=recklessly causing death. "intent" and "recklessly" are terms defined in the statutes, not by me. We are stuck with those definitions.

H: I'm not blaming anybody, but you seem to be. Your explanation sounds like just another conspiracy theory, doesn't it? Isn't it part of a judge's job to require the parties to explore settlement? If every case went to trial we would need 50 courthouses. You think that's a good idea? Are you saying that our judges routinely deny legit warrants to save money? Put up some proof. Please explain how our lack of a drug dog fits into the conspiracy? The cops don't need a judge's permission to obtain a drug dog.

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Fred Duckels 5 years, 5 months ago

I feel that justice is necessary, lack of a local connection should not justify indifference. A manslaughter charge would be expensive, and I think that a plea bargain rewards a bully, and does not place the value on a person that served his country and did not deserve this. We are short of money but this case might give us some unwanted publicity. I feel very bad about the situation.

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aichempty 5 years, 5 months ago

Shawant,

There's coke and pot all over town. Read the record for just the reported cases of people being stopped for traffic violations and having the stuff found in their cars.

So, why couldn't GRAMNET find and prosecute traffickers in Routt County? Why does ACET make so few arrests, and why are none of them for "respectable people" until a landlord turns somebody in (Stagecoach) or a party gets out of hand (Jensens).

What's your theory? Nobody is using or trafficking except the ones who've been caught?

And you're right about the judge's job. No argument there. I was only speculating that the DA could be setting this case up for a plea bargain instead of a trial, and don't you think it looks better for the defendant to plead guilty to the charge against him than to have the DA charge him with manslaughter, and then lower it to assault to obtain the plea?

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Kristopher Hammond 5 years, 5 months ago

So the conspiracy goes beyond the Lopez case to all cases. Let me make sure I have it right: Judges are on the take and want to lower their caseloads and save money, so they 1) encourage settlements and 2) deny legitimate warrants for the "respectable people" who are paying them off. And your proof of this is that there are "so few arrests" for "respectable people"? And drug dogs refuse to work here because they are in on it too. My theory is that not everyone who breaks the law gets caught. I'm sure that chipping the population, random police searches of homes and cars, surveillance cameras on every corner and mandatory drug testing of everybody would fix that.

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aichempty 5 years, 5 months ago

Shawant,

Attacking me doesn't change any of the facts. History is what it is, and people can decide for themselves. I just happen to know that it's very hard to get certain types of crimes investigated around here, so there must be a reason.

The DA made a decision. Let's see how it works out for him.

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Kristopher Hammond 5 years, 5 months ago

I am not attacking you. I do take issue with the arguments you make. If certain crimes are being ignored that is wrong. What crimes are ignored by law enforcement?

The DA is a her, not a him.

Half the people who fight it out in court lose.

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aichempty 5 years, 5 months ago

shawant,

Would you believe that good, staunch Republicans could be involved in drug trafficking and would do favors for each other, political and otherwise, for personal profit using public positions?

If district attorneys (not our current one), private attorneys, law officers and officers of the court were involved in such activities, wouldn't they be in a perfect position to quash investigations into such matters? Yeah, they would. Then the only cases that would come to court would be the ones like ACET turns up with the low-rent criminals and the ones that can't be avoided, like the Stagecoach and Jensen cases that got into the paper by other means.

Where are the coke cases involving real estate agents (we have hundreds of them), attorneys (one of our local attorneys was once disbarred for, among other things, taking drugs in payment for legal services), cops (check the records across the country where cops are involved in trafficking), etc? Not a dadgum one around here in going on 20 years? That's very hard to believe in a county with so much drug use going on.

That's all. I can prove that nobody in these categories is being prosecuted, because they don't show up in court records. Can you prove that nobody in these categories is doing it?

It's possible, but is it likely? I don't think so.

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aichempty 5 years, 5 months ago

Oldie,

You are absolutely right.

These guys are a pure indication of the fact that the formerly suppressed "bad" behavior we heard about in certain communities, including ethnic gangs and communities in the cities, has come into the mainstream. When the communities don't police themselves, and the police are seen as enemies, people grow up to be drunken, irresponsible, violent savages. Thank God drug use hasn't contributed to it at all.

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Kristopher Hammond 5 years, 5 months ago

Oliver Stone is an amateur compared to you. This is a vast conspiracy, obviously involving everyone who hasn't been arrested. The only honest ones are the ones in jail. I'm glad you're onto it, but aren't you worried about being the one who exposed it? If you suddenly stop posting we'll know why. I can't believe the Pilot hasn't buried this post since they are no doubt in on it too. I used to think that these people weren't getting arrested because they weren't getting caught. How naive of me. The conspiracy just makes so much more sense. Show me the article about the attorney or admit you just made that up Oliver.

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oldskoolstmbt 5 years, 5 months ago

aich always turns this into drug use .....get back to the article....drunk a-holes from florida murdered a soldier here on vacation...nothing to do with police dogs, pot plants, or anything else except drunkin' stupidity that needs to have responsibility stepped up to the plate for!

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1999 5 years, 5 months ago

how about just plain old ignorance????????????

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bubba 5 years, 5 months ago

While I find conspiracy theories about drug use and politicians both entertaining and fascinating, I do find the question in the title much more interesting.

It was my understanding that when someone is charged with a crime, they district attorney files a number of charges, and it is up to the judge/jury to make the real decisions about what the crime was and a just punishment.

While I am certainly not a lawyer, I do have two examples that come to mind that formed this understanding:

A friend of mine, a cop, responded to a scene where a driver's trailer hitch had broken, releasing his trailer and causing an accident. He wrote a ticket for 'faulty equipment' or something. When I told him he was a (rhymes with slick) for doing so, he told me that it's not his job to decide, that's what judges are for.

Another friend got in a minor 1 vehicle crash, and smelled like beer, and was written a ticket for DUI, DUI Per Se, DWAI, Careless Driving, and 3 or 4 other things.

Based on those two events, I thought that they would charge them with Manslaughter, Assault, and a half-dozen other things, and let the judge and/or jury decide on intent, recklessness or anything else. Maybe I don't understand the position of DA properly, but it seems like it should be up to judges and juries to decide intent, not the DA.

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MrTaiChi 5 years, 5 months ago

Shawant

You seem to have me confused with another contributor and did so with attitude. Dial it back a couple of clicks, ok?

You also seem knowledgeable about the laws of Colorado, so unless it betrays a conspriatorial mind that I'd jump to such conclusions, I'll defer to your expertise as an attorney, student, paralegal or whatever.

Reasoning backward, which is always prone to error, from the death of an innocent man to the violence that caused it, many posters are communicating that it appears to be an abuse of prosecutorial discretion to charge assault exclusively. Their sense of justice is offended.

It's admirable for you to invoke the rule of law to defend the DA, as apparently you have no dog in this fight. If you do, it would show uncommon integrity for you to disclose it.

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Duke_bets 5 years, 5 months ago

They have only given us the prosecutions evidence. The defense must also have a ton of evidence, thus the reasons for the charges. Do you all remember the very first article? The friends that were with Lopez on the tragic evening made statements that would lead to a case of self defense for the Capote's.

The defense is most likely headed in that direction.

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Kristopher Hammond 5 years, 5 months ago

MTC: no attitude intended, but the ear of the beholder is what counts. My bad. I have no dog in this fight.

Although manslaughter and second degree assault are both class 4 felonies, the assault charge is actually much more serious.

Manslaughter is a plain-old Class 4 felony and carries a possible 2-6 year prison sentence, but Capote could get probation.

Second degree assault is different because it is defined as an "extraordinary risk crime", which bumps the max by 2 years to a 2-8 year sentence. 2d assault is also a "crime of violence", which REQUIRES the judge to impose a sentence of at least the midpoint (5 years) to no more than twice the maximum (16 years). No probation option for the sentencing judge in second degree assault.

The "it wasn't me" defense won't work, the insanity defense won't work, self-defense is the only way for Capote to walk: "I did it, but I was justified."

Self defense statute: Was Capote "defending himself or another from what he reasonably believed to be the use or imminent use of unlawful physical force by Lopez, and did he use a degree of force which he reasonably believed to be necessary for that purpose."

Did Capote believe that a physical attack by Lopez was imminent? Was Capote's belief reasonable? Did Capote use the degree of force he believed was necessary? Was Capote's belief reasonable?

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Kristopher Hammond 5 years, 5 months ago

MTC: I looked at my prior post. The rest of it was directed at "H", or aichempty. Attitude intended.

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freerider 5 years, 5 months ago

I have to agree with Rob Limbaugh on this one...The D.A. in this town is absolutely pathetic...a guy dies and it's assault..witnesses saying they saw the victim attacked and they don't have it together to file manslaughter charges...???the D.A. will go after the Jensen's like fascist zelots ... or how about the " sweet pea " guys ....that's gotta be one to be remembered ....they wanted to fry those guys for raiding a garbage can...WTF is wrong with the local D.A. ??? I know at least 10 guys that have been falsely accused of domestic violence and charged with assault because there ex's said so...then they get a real case and drop the ball...The D.A. would rather spend it's resorces arresting pot smokers and innocent men on domestic's ...Our new marketing strategy for Steamboat...Ski Powder all day long , enjoy beating the crap out of someone at night, hey !!! it's ok if you kill em ...you will just get your wrist's slapped...bring the whole family for lot's of fun

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aichempty 5 years, 5 months ago

freebie,

I think the DA in the Sweet Pea case is not the current DA.

As for a guy dying and it's only assault, we had a guy die because a driver left the scene of an accident (fled on foot) instead of rendering aid or contacting emergency services, he was convicted of vehicular homicide, and served less than a year.

Shawant appears to have the most current knowledge on all this. What he says tends to support the DA's decision. From what he says, manslaughter in Colorado appears to be one of those "heat of passion" crimes where there was no premeditation of murder, but a death occurred. The 2nd degree assault charge is a crime of premeditation, meaning that somebody made a decision to use force and then did so. This was a case where everybody could have just walked away from the conflict, and if Lopez had followed and attacked them, self-defense would have been appropriate.

It may be that, in Miami, if you walk away from a confrontation, you are inviting attack. There are probably some cultural prejudices involved in this case that everybody is tippy-toeing around, but try to remember that prejudice is not necessarily hate. Prejudices are formed by experience in many cases, and are a form of stereotyping that all humans engage in at one time or another. For example, shawant accuses me of being a conspiracy theorist. My own personal attorney has heard the details behind my general statements, and he knows it's not a conspiracy; it's a pattern and a practice that judges and attorneys can get away with when they are in charge of regulating themselves. All our perceptions are colored by our experiences, and it takes wisdom and maturity obtained through experience to deal with the bigger issues involved in this case.

There are people who will ask, "If somebody breaks into my house, can I shoot him?" In some states, the answer is "yes." Don't they call it the "make my day," law in Texas? But, does that give you the right to let everybody in town know that you've got gold bullion stashed in your house, to drive away, park at the airport, and then sneak home and sit in the dark with a gun, waiting for somebody to break in so that you can shoot them?

This appears to be a complex case, and frankly, I hope I don't get called for jury duty on this one. I just hope our local system is up to the challenge and doesn't screw it up on procedural grounds that would cause it to be appealed and dragged out for years to come.

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Duke_bets 5 years, 5 months ago

aich - You truly lost all credibility to your rants. The "make my day law" came about in Colorado in 1985. You're obviously not from Colorado if you didn't know that. A landmark ruling that you, of all people, brought up and didn't know.

You really tripped over something with that one. Especially mentioning "wisdom". Good luck with future posts because you actually just made my day. Ha Ha

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aichempty 5 years, 5 months ago

Oh, Dookie,

The Colorado law preceded my arrival by several years. I haven't really needed to shoot anybody, nor contemplated doing so, so pardon the #### out of me if I missed a detail. I was living in the DC suburbs in 1985, having skied only one time in my whole life, and couldn't have cared less about what was going on out in the square state.

Gotta tell ya, man, anybody who is going around trying to discredit me is wasting their time. The only thing I do is try to tell the truth, and we know that's not worth beans in this community. I don't want you to believe me. I want you to question everything and find the truth for yourself -- Grasshopper.

I have lived in ten different states and moved state-to-state nine times since I graduated from college. There's a lot of stuff that varies from state to state, and that's sorta the point in this thread. Manslaughter in Rob's old home town of DC is not the same as out here, because the laws were written by different people and the same term can mean different things.

Anyway, glad I made your day. He He.

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Duke_bets 5 years, 5 months ago

aich - I'm not trying to discredit you. I did! If you didn't know that Colorado brought about the Clint Eastwood law 20+ years ago, all of your rants are in question.

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aichempty 5 years, 5 months ago

Duke,

The more amazing thing is that anyone would read this crap in the first place!

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justice4all 5 years, 5 months ago

Justice will be served in this case, one way or the other. Even if the court does not find them guilty of any charge, Atty Feldman will invoke a harsh punishment. He has been known to make promises of dismissal of all charges by the court or promise a very light sentence if any at all. He will make these promises until he gets all your money and then suggest that he was able to get you a tremendous deal and that you should take a plea-bargain.Then he will give you a tremendous bill for his services, put you in bankruptcy and take your home. Ask Pam and her family. Makes one wonder which side he is on.

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oldskoolstmbt 5 years, 5 months ago

money, it's a crime....that SHOULD have nothing to do with this MURDER (involuntery or not!)....so f'n sad!

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